Florida Voting Law May Disenfranchise Thousands

The Brennan Center for Justice and Advancement Project. Posted September 12, 2008.

Voting rights advocates are alarmed over the Florida Secretary of State's September 8th decision to enforce the state's "no-match, no-vote" law, a voter registration law that previously blocked more than 16,000 eligible Florida citizens from registering to vote, through no fault of their own, and could disenfranchise tens of thousands more voters in November.

Secretary of State Kurt Browning's last-minute decision to implement the law in the final month before the registration deadline will post a significant hurdle to eligible Florida citizens hoping to vote in November. It will disenfranchise voters who do not send or bring a photocopy of their driver's license to county election officials' offices after voting, even though these voters will have shown their driver's licenses when they went to vote at the polls.

"This 11th-hour decision is an ill-advised move to apply a policy the state has never enforced in its current form, at a time when registration activity is at its highest," stated Beverlye Neal, director of the Florida State Conference of the NAACP, a plaintiff in a lawsuit that challenges Florida's matching law. "The Secretary's decision will put thousands of real Florida citizens at risk due to bureaucratic typos that under the 'no-match, no-vote' law will prevent them from voting this November," said Alvaro Fernandez of the Southwest Voter Registration and Education Project, another plaintiff in the case.

"Voters who do everything right, who submit forms that are complete, timely, and accurate, will suddenly find themselves unregistered when they go to vote, just because someone somewhere punched the wrong letter on a keyboard," said Myrna Pérez, counsel at the Brennan Center for Justice. "The no match, no vote policy is unjust and unnecessary, and Florida voters will pay the price this fall," stated Jean-Robert Lafortune, president of the Haitian-American Grassroots Coalition, another plaintiff in the lawsuit.

The law at issue bars any Florida citizen from voting a valid ballot if the state cannot validate their driver's license number or the last 4 digits of their Social Security number, no matter how much identification the voter is able to bring to the polls. The process starts with an attempt to "match" voter information to other government databases, an error-prone exercise that often fails. For example, the Social Security Administration reports that 46% failure rate when trying to match voter registration applications. State officials admitted in a recent challenge to the law, Florida NAACP v. Browning, that typographical errors by election workers are responsible for most of the failures.

If the state fails to match the voter registration records, many eligible voters who submit registration applications before the October 6th deadline to register may not be notified of the matching failure until they go in person to vote. There, they will be forced to cast provisional ballots, and that provisional ballot will only be counted if the voter submits a photocopy of his or her driver's license or Social Security card within 48 hours after the election, even if they already showed their driver's license at the polls.

"The most senseless part is that the state creates these errors, and then makes it unnecessarily hard to fix the problem," said Myrna Pérez of the Brennan Center. "If the state insists on enforcing this misguided matching provision, it should at least make it possible for voters to show their driver's license at the poll and validate their registration then and there. To have registered, brought your ID to the polls, and still be told you can't vote -- all because of a bureaucratic error -- is ridiculous."

"It is unfortunate that the Secretary of State launched this policy less than a month before registration deadline. Had he enforced this sooner, there might have been time to troubleshoot the law or investigate its consequences, but this is really the 11th hour and is certain to derail eligible voters. At the very least, counties can and should help avoid the chaos that this law creates by making it possible to fix the problem at the polls," urged Elizabeth Westfall of Advancement Project, one of the attorneys for the plaintiffs.

"In 2006 alone, more than 12,800 citizens submitting complete and timely forms were kept off of the rolls, and the volume of registration in 2006 is nothing like what we anticipate in this presidential year," said Robert Atkins, a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, also representing plaintiffs. 2006 was a year of unusually low voter registration rates in Florida because of a separate law that shut down voter registration drives that year. "With the huge number of registration forms pouring in at the end of the registration period, county officials may not be able to fix problems that will cause thousands of eligible voters to be disenfranchised," Atkins added.

The Secretary of State's announcement Monday poses the latest obstacle to eligible Florida voters seeking to register before the 2008 elections.

In June, a federal trial court in Gainesville, Florida, refused to stop the "no-match, no-vote" law in Florida NAACP vs. Browning after challenges from several voter advocacy organizations. The case was filed in September 2007 by the Florida branch of the NAACP, the Haitian-American Grassroots Coalition, and the Southwest Voter Registration Education Project. The plaintiffs are represented by The Brennan Center for Justice at NYU School of Law; Advancement Project; Project Vote; Paul, Weiss, Rifkind, Wharton & Garrison LLP; and Greenberg Traurig LLP.

In December 2007, the Gainesville federal court granted a preliminary injunction against the no-match, no-vote law under two federal statutes, ruling that Florida's law "makes it harder to vote by imposing a matching requirement that is a barrier to voter registration."

The ruling's criticism of the no match, no vote law prompted the state legislature to revise portions of the statute -- eliminating untenable distinctions between typos made by voters and those made by election officials, and standardizing the notice sent to voters kept off the rolls. Still, voting rights advocates argue that the law's core burdens remain.

In April, the trial court's original decision was overturned in split decision from the Eleventh Circuit Court of Appeals in Atlanta, following an appeal by the Florida Secretary of State. Plaintiffs in the case returned to the federal trial court to challenge the amended law under the federal constitution, but on remand, the court refused to enjoin the law, citing the changes that the legislature had made to the statute.

For more information about the lawsuit challenging Florida's voter registration system and how voter database matching laws disproportionately affects Latino voters and other minorities, visit the Brennan Center website here.

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Advancement Project and The Brennan Center for Justice at NYU Law School are public interest law firms specializing in election law and voting rights.

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